Director of Public Prosecutions v Clark Cranes Pty Ltd (ACN 137 977 641)

[2023] VCC 297

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CR-21-01364

DIRECTOR OF PUBLIC PROSECUTIONS

v

CLARK CRANES PTY LTD (ACN 137 977 641)

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JUDGE:	HIS HONOUR JUDGE MEREDITH
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	28 February 2023
CASE MAY BE CITED AS:	DPP v Clark Cranes Pty Ltd (ACN 137 977 641)
MEDIUM NEUTRAL CITATION:	[2023] VCC 297

REASONS FOR SENTENCE

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Subject:

Catchwords:              Crane failure, jury verdict of guilt, fine of $400,000 with conviction.

Legislation Cited:      Occupational Health and Safety Act 2004

Cases Cited:

Sentence:                  

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr R O’Neill with Ms Dickins	Solicitor for the Office of Public Prosecutions
For the Accused	Mr N Pappas KC with Mr G Carolan	Colin Biggers & Paisley Lawyers

HIS HONOUR:

1Clark Cranes Pty Ltd was found guilty by jury verdict on 31 January 2019 of Charge 1, that Clark Cranes failed to ensure so far as reasonably practicable that plant supplied was safe and without risks to health. This charge was laid pursuant to s31A of the Occupational Health and Safety Act.

2The maximum penalty for this offence is 9000 penalty units, therefore the total maximum penalty equates to a fine of $1,427,130.

3Given that Clark has been convicted as a result of the jury’s verdict, the mitigatory matters that may have flowed from Clark having pleaded guilty cannot be called in aid by it.  That said, however, I cannot and do not aggravate the sentence I impose as a result of Clark having exercised its right to take the matter to trial.

4By way of background, the charge concerned a fully imported brand new tower head crane, manufactured by Raimondi Cranes of Italy, an MRT189 model.

5This crane was imported and then erected and commissioned by Clark.  This was to be deployed at a multistorey development site on Whitehorse Road in Box Hill.  The principal contractor of this site was Alliance CG Pty Ltd ( Alliance).

6Proceedings against Alliance were to follow those relating to Clark, however, the case against Alliance has been discontinued.

7The crane went into service in or around mid-June 2018 and on
6 September 2018, the crane, while carrying a kibble filled with wet concrete, weighing a number of tonnes, failed, causing the load to enter free fall, resulting in the killing of one worker, Mr Shaun Burns, and the serious injury of another, Mr John Bubic.  He has been rendered a paraplegic.  In addition, Mr Chris Poi was also injured by the falling kibble.

8The cause of the crane failure under load was a missing or improperly fitted split pin, which should have been positioned on a castellated nut, which secured a load bearing component known as the hoist rope termination bolt, part of what is known as the hoist rope termination assembly.

9It needs to be said at the outset that Clark is not charged with having caused the death, serious injury, and injury to workers as a result of the incident that occurred on 6 September. The offence which has been proven is risk based, as opposed to outcome based. The primary significance of the consequences of the crane failure is to illuminate the potentially catastrophic consequences of the attendant risk crystallising, a matter which is relevant to gauging the objective gravity of the breach in question.

10I do wish to acknowledge family members who attended the proceedings at different times and commend them for their dignity and conduct generally in what can only have been for them a very difficult exercise.

11Whilst the penalty I impose is not a measure of the pain and suffering which the crane fail has caused to those affected by it, nor a measure of the value of
Mr Burn’s life, or of the serious injury caused to Mr Bubic, nonetheless the victim impact of this crime remains a relevant sentencing matter for me to have regard to in fashioning a sentence which is just in all the circumstances.

12In that regard victim impact material has been received by the court from the mother and father of Mr Burns, his sister and brother in law.

13It is plain that Mr Burns was well loved and his death has had a profound and ongoing impact, and I will have appropriate regard to the relevant and admissible contents of the victim impact material in reaching an appropriate sentence in this matter.

14Amongst other things the mother of Mr Burns states:

'After Shaun died I just always wanted quiet.  It gave me some peace.  Before then I was very social.  I just wanted afterwards to be at home because that felt safe.  Sometimes I would drive out to where Shaun lived just to feel close'.

15Mr Burns' father, amongst other things writes:

'Not a day passes without thoughts of Shaun.  The things we did together, his achievements in sporting events, his childhood and everything about him'.

16His sister writes:

'We were very close to my brother, Shaun.  He regularly visited our home, watched our children play sport, came to all birthday celebrations, babysat and holidayed with us'.

17And finally his brother-in-law, amongst other things states:

'I miss having Shaun in my life.  We had a strong, fun and supportive relationship.  We spent quite a bit of time together and he was always helping me with tasks in the garden and building different things.  I, as an IT guy, helped him a lot with IT problems as he wasn't very IT literate.  We laughed about his IT issues a lot.  I miss his sense of humour'.

18The identified risk, pursuant to Charge 1, was a risk to health and safety arising from the supply, erection and commission of the crane, in that if the split pin for the hoist rope termination bolt of the crane was not safely inserted when the crane was erected, any load being lifted by the crane could fall to the ground.

19The identified measure to address the risk was that the risk would have been eliminated or reduced had Clark ensured that the split pin had been properly inserted in the hoist rope termination bolt of the crane by the time the crane was erected and commissioned at the workplace.  This could have been achieved by completing a thorough inspection of the hoist rope termination component of the crane prior to the crane being used to lift loads, and either inserting a new pin if the pin was absent, or replacing the pin if it was faulty or damaged.

20The jury’s verdict indicates that they were satisfied beyond reasonable doubt that the identified measure to address the identified risk was a reasonably practicable means of addressing the risk of death or injury from a falling crane load.

21To place the breach in its proper context, it is necessary to say something of the evidence led in the trial.

22Mr Rod Wilkie, a mechanical testing engineer, gave evidence which was not the subject of dispute.  In summary, he said that the cause of the crane failure was the unwinding, over time, of the castellated nut of the hoist rope termination bolt.  He gave evidence that the hoist rope termination bolt was secured by a castellated nut, which should have had a split pin inserted through a hole in the bolt, to prevent the hoist rope termination nut unwinding over time.  He said the rotational and tortional movement forces on the crane rope, over time as loads were lifted, would in the absence of a split pin or an improperly fitted pin, cause the castellated nut to unwind.  When it unwound the load being carried would then go into free fall.

23His testing included examination of the castellated nut and also the termination bolt.  His examination did not reveal any injury to the castellated nut.  While not definitive, this may support the inference that the tines of the relevant split pin were never extended around the castellated nut.  He further opined that it would be unlikely that a technician or engineer would improperly fit a split pin, as its use and method of operation would be readily understood.  He stated that an opinion given by Dr Andrew Baigent, a consulting engineer, to the effect that the split pin on the castellated nut was unlikely to have been installed on the nut in question, was plausible.  It was common ground that the split pin ought to have been fitted by the manufacturer, Raimondi Cranes of Italy, and it was a possible explanation for the absence of the split pin that its fitting was not in place at the time at which Clark Cranes received the fully imported crane.

24Mr Shane Tronconi, a crane assessor and inspector, gave evidence to the effect that during a pre-erection inspection of the hoist rope termination assembly of the crane, he would check to ensure that the relevant split pin was in place.  That this could occur at the depot before erection. He further stated that this check could be undertaken once the crane had been erected and during a procedure where, what has been described in evidence as a, 'hambone', is fitted to the hoist rope termination assembly.  In support of this, he identified a photograph of what he said was a similar assembly to that which would have been fitted to the crane in question.  It transpires, however, that this photo relates to an MRT84-model crane, where the crane in question was an MRT189 model, and evidence indicates the 189 model has a steel platform positioned at the end of that crane’s jib point, above where the hoist rope termination assembly would be in situ.  Notwithstanding this, Mr Tronconi insisted that it would be possible to check for the presence of the relevant split pin in the
189-model crane when it was erected and in situ.

25Mr Andrew Taylor, a senior engineer with WorkSafe, gave evidence, amongst other things, in regard to the content of the relevant Australian Standard for tower cranes.  In this regard, he described the Australian Standard as an industry benchmark.  He agreed there were a wide variety of tower cranes in operation and in order to accommodate this variety, as well as technological developments, the relevant standard is expressed in general terms.  In particular, he referenced item 6.3.1 of the Standard, which is to the following effect:

'Inspections, including the associated tests, shall be carried out at sufficient frequency to ensure the crane is kept in a safe and satisfactory condition.  Sub-section (a) provides pre-erection and commissioning inspections and tests shall be carried out before the crane is erected, during its erection and as part of its commission onsite'.

26He further emphasised item 6.3.2.1 of the relevant standard, which was to the following effect:

'Prior to erecting a crane, or where additional or modified or additional components are used on an erected crane, the component shall be inspected and verified by a competent person as conforming to the manufacturer’s specifications and the following requirements:

…

(b)   sufficient appropriate components shall be supplied to ensure the complete erection of the crane in its intended configuration; and

…

(d)   the component shall be properly maintained and is a suitable condition for use'.

27The upshot of Mr Taylor’s evidence was that, notwithstanding that the relevant standard did not reference the need to check the hoist rope termination assembly, let alone a split pin to be placed on the castellated nut of such an assembly, he would expect a brand new crane, fully imported, to be the subject of an inspection before its erection on the first occasion, which would enable a missing or improperly fitted component to be observed and rectified.  He said the aim of the inspection of a brand new crane would be to ensure it was complete and had all of its components.  His evidence was that, notwithstanding that the crane may have been brand new, that it should still have been checked.

28He said the crane would have been manufactured overseas and thus there would be no Australian oversight, for example, regarding quality assurance practices of the manufacturer and/or that the crane, as a result of its packaging up and transportation in containers from overseas to Australia, could result in the damage of, or misplacement of components.  In summary, he said he would expect the crane to have been checked for completeness.

29He further described the hoist rope termination assembly as one of several critical components of a crane.  He said the assembly is critical to the proper operation of the crane and its integrity is relied upon to keep a suspended load airborne.  That if the crane failed under load, the load would fall, placing persons at risk.  He described the split pin of the castellated nut of the hoist rope termination bolt as a single point dependency, meaning there was no back-up system if it failed and, thus, it was an important item.

30He agreed that once assembled and in the air it would prove very difficult for a rigger to check the hoist rope termination assembly.  He said, however, none of these difficulties would present themselves before the crane was erected, and that the crane could have been inspected at Clark’s yard or when it was loaded into vehicles for transportation purposes, or on arrival at the site, before being raised into position.

31Mr Matthew Spinner, who is the tower crane manager for Clark, gave evidence.  Regarding a check for the presence of the relevant split pin on the castellated nut, once the crane was erected and in situ, he said this would not be possible on a 189-model crane.  He said that this was due to the fact that the chest and face of a rigger would be resting on a steel platform that the rigger would have to lie on in order to access the hoist rope termination assembly.  He said in this position it would not be possible to see the split pin of the castellated nut.

32He agreed that at the relevant time it was not the practice for Clark to check for the presence of the relevant split pin, and he further gave evidence that he had worked in South Australia, New South Wales and Queensland for 10 or
12 crane companies before the incident in question, and that he had never observed a rigger conduct a separate check of the hoist rope termination assembly on a new fully-imported crane.

33He gave evidence that, when the crane was imported from Raimondi Cranes of Italy, the hoist rope termination assembly came pre-assembled by the manufacturer and it was placed in the tip section of the crane on arrival.  He agreed that if the component was attached to the jib of the crane prior to the crane being commissioned, that portion of the crane could be lifted, potentially by another crane, to enable checking of the split pin in question.

34Dr Andrew Baigent, a consulting engineer, gave evidence that it was not industry practice to check for the split pin of the castellated nut.  In Dr Baigent’s opinion, this was reasonable in all the circumstances.  In summary, Dr Baigent placed emphasis on the fact that the crane in question was brand new, having been fully imported from Raimondi Cranes, a reputable crane manufacturer.
Dr Baigent was of the view it was reasonable for Clark to have assumed that Raimondi’s quality assurance practices would have been adhered to and the split pin would be in place.  In essence, Dr Baigent’s evidence was that it would be unreasonable to have expected Clark to have undertaken the inspection provided for in the measure in Charge 1.  He said it was not industry practice for that inspection to be conducted.

35Dr Baigent agreed that within the crane industry a split pin is a well-known method of ensuring the stability of a nut remaining on a bolt.  He further agreed there were very few castellated nuts on cranes.  He agreed that whenever one saw a castellated nut, one would expect a split pin to go with it.  He agreed that a competent person in the industry would know that a castellated nut and split pin go together.

36Evidence emerged through Mr Taylor that Raimondi Cranes had conducted their own investigation into the crane failure in question.  Raimondi had reported that they had manufactured 18,000 tower cranes and had never experienced a failure of the hoist rope termination assembly.  Raimondi described the failure in question here as unprecedented.

37Dr Baigent gave evidence that in his estimation there would be approximately 100,000 tower cranes in operation worldwide.  He was unaware of any failure of a hoist rope termination assembly in any tower crane at any time.

38It is in light of this necessarily brief summary of the evidence that I must interpret the jury’s verdict.

39The gravity of the breach in question is measured by the extent to which Clark had departed from its duty as mandated by s30(1) of the Act, and the extent of the risk of death or serious injury which might result from its breach.

40In sentencing Clark, I must sentence consistently with the jury’s verdict.  If I make findings of fact that are not apparent from the jury’s verdict, any findings of fact adverse to Clark must be arrived at beyond reasonable doubt.  There is no general requirement that I must sentence Clark upon the basis of the view of the facts, consistent with the verdict which is most favourable to it.  However, because I am required to resolve any reasonable doubt in favour of Clark, the practical effect of this may be that I would be obliged, for that reason, to sentence it upon a view of the facts most favourable to it.

41The apparent conflict between the evidence of Mr Tronconi to the effect that it would be possible to check for the presence of the split pin on the castellated nut of the hoist rope termination bolt while the crane was erected and in situ, as opposed to the evidence of Mr Taylor that it would be difficult, and that of
Mr Spinner and Dr Baigent, to the effect that this would not be possible on a 189-model crane as a rigger could not view the relevant component, does not have to be resolved by me.  It would not make any material difference to my sentencing task.  On any view of the evidence, such a check could be made prior to the crane being fully erected.

42The prosecution submit that Clark’s is a, 'very serious', example of the relevant offence.  Defence counsel submits that this is not so.

43On the basis of the whole of the evidence, I cannot be satisfied that Clark was acting other than in accord with what were, at the time, prevailing industry standards.

44This is not a case of a blatant disregard of safety, nor reckless indifference to risk.

45The crane in question was new, having been fully imported from its manufacturer, Raimondi of Italy. The hoist rope termination assembly component was fully assembled by the manufacturer.  The crane was erected and commissioned by Clark.

46There is no evidence of a similar failure of the hoist rope termination assembly of a tower crane prior to the tragic incident in question occurring on
6 September 2018.

47Whilst evidence was given that the relevant Australian Standard is expressed in general terms and mandated that sufficient appropriate components shall be supplied to ensure the complete erection of the crane in its intended configuration; and that the standard is to be interpreted by competent persons bringing their knowledge to bear on the task, the pre-erection and commissioning procedures that were conducted were done in circumstances where the relevant Australian Standard did not make specific reference to the need to check the hoist rope termination assembly of a new crane. Neither the Raimondi manual and other material in evidence at the trial referenced this.

48The likelihood of crane failure from a missing or improperly fitted split pin on the hoist rope termination bolt of the crane was, in light of the evidence before me, low. The risk of death or serious injury arising from a failure of the hoist rope termination assembly consequent upon a missing or improperly fitted split pin was, however, high.  Such a failure was likely to occur when the crane was in operation at a time when a site was occupied.  As the incident of 6 September demonstrates, the likely outcome would be catastrophic.  I am satisfied that Clark knew or ought reasonably to have known that in dealing with such inherently dangerous plant as this, that the hoist rope termination bolt was a component which was load bearing and a single point dependency.  In other words, critical to the safe operation of the crane.  I am satisfied that it would have been obvious to a competent person that a castellated nut ought be secured by an operational split pin.

49The means to remedy the risk, by instituting an inspection targeting the hoist rope termination assembly of a new crane was relatively straightforward and not particularly costly.

50Whilst there are dangers in resorting to epithets, in light of these findings I would describe Clark’s departure from the duty which it owed as significant.

51The parties have not referred me to another sentence imposed under s30 the Act.  Consistent with established sentencing authority relating to employer as opposed to supplier breaches, as well as the principles of health and safety protection outlined in s4 of the Act, general deterrence must be of particular importance in sentencing for this type of offending.  It is necessary that sentences imposed appropriately reflect the need to emphasise workplace safety and send a message that failure to eliminate or reduce safety risks will attract significant punishment.

52So far as Clark is concerned, it is a family-owned company which has traded in its current corporate form since 2009.  Clark owns approximately 70 tower cranes, including approximately 40 Raimondi cranes. The company is the official agent for Raimondi Cranes in Victoria and Queensland.

53It has no previous convictions and no findings of guilt recorded against it, nor has it been previously charged with an offence against the Occupational Health and Safety legislation, and there are no pending charges or investigations outstanding against it.  Clark had traded at the time of the incident for approximately 10 years.

54Clark took steps to address the risk, and it, as well as the industry as a whole, now implement inspections targeting the hoist rope termination assembly and the split pin in question on new cranes as well as those which have been in service.  There is a reduced need for specific deterrence in this case.

55Consequent upon the COVID pandemic and investigative measures, a period of some four and a half years has now elapsed since the incident and my sentencing of Clark.  This delay is not attributable to Clark.  Aside from the company having this matter remain unresolved and hanging over its corporate head for that period, the delay is relevant as it evidences a process of corporate rehabilitation, in the sense of Clark having initiated measures for inspections of the hoist rope termination assemblies of both new and used cranes.

56Reference material attests to Clark’s professionalism and also its good safety record.  Other material documents some charitable donations undertaken by it. I accept that, colloquially speaking, Clark is a good corporate citizen.

57Counsel on behalf of Clark submitted that I ought not record a conviction of it. Amongst other things, reliance was placed upon Clark’s previous good corporate prior character.  It was submitted that this is not a serious breach of the Act, and what is referred to as the unprecedented nature of the incident. Further, that Clark is concerned in relation to the reputational loss and potential further costs associated with the recording of a conviction.  That the recording of a conviction may, for example, impact Clark’s ability to secure government work or other commercial contracts.  Given that this is a first offence, it was submitted that Clark ought not be required to bear the consequences associated with a recorded conviction.  No evidence has, however, been led regarding any likely loss of or downturn in Clark’s business should a conviction be recorded against it.

58I have not been provided with any financial details regarding Clark.  In saying that I am in no way critical of counsel, however, it follows that it has not been suggested that a financial penalty would occasion particular difficulties for the company, which from the evidence would appear to be a successful supplier of large plant.

59Whilst as I have already said, Clark’s plea of not guilty does not aggravate the sentence I impose, it follows, however, that the mitigatory matters otherwise available to Clark, are foreclosed.  There is clearly, for example, no utilitarian benefit to the court or the community as a result of a saving of court time, which would be the case if there had been a guilty plea in the matter.

60In determining the appropriate penalty in this matter I have had regard to the various authorities which the parties drew to my attention.  Previous sentences imposed are not precedents, and each case is to be judged according to its own particular facts.  I cannot accede to counsel for Clark’s submission that I ought not record a conviction against Clark.  In my view, in all of the circumstances, notwithstanding the mitigatory matters that Clark may rely upon, that would not adequately reflect the significance of its breach.

61Balancing all matters, I fine Clark in the sum of $400,000 with conviction.

62Are there any further orders required?

63COUNSEL:  No, Your Honour.

64HIS HONOUR:  All right, thank you.

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